6.  The first applicant, Mr Serge July, was born in 1942 and lives in Paris. He was the publication director of the national daily newspaper Libération. The second applicant, the private limited company SARL Libération, was represented by Mr July, who was its manager at the time.
7.  On 19 October 1995 Mr Bernard Borrel, a French judge who at the time had been seconded as technical adviser to the Djiboutian Minister of Justice, was found dead 80 km from the city of Djibouti. His half-naked and partially burnt body was lying some 20 m below a remote road. In early November 1995 the investigation by the local gendarmerie concluded that he had committed suicide by self-immolation.
8.  In November 1995 a judicial investigation was opened in Toulouse “to establish the cause of death”, and the judge’s body, on its repatriation to France, was interred in Toulouse. In February 1996 an autopsy was carried out on the judge’s remains and its conclusion, notified to his widow on an unspecified date, was that he had committed suicide after dowsing himself in petrol.
9.  In February 1997 the widow of the deceased judge, disputing that finding, filed a complaint as a civil party against a person or persons unknown for premeditated murder. In April 1997 a judicial investigation was opened on that basis. In July 1997 a private forensic report, commissioned by the civil party, concluded that in view of the total absence of burn residue in the judge’s lungs, he must already have been dead when his body caught fire. The judicial investigation was subsequently transferred to Paris, where the case was assigned in late October 1997 to two investigating judges at the Paris tribunal de grande instance, namely Ms Moracchini, assisted by Mr Le Loire.
10.  In March 1999 the investigating judges visited Djibouti without the civil parties.
11.  While Mrs Borrel was challenging the suicide conclusion towards which the judicial investigation seemed to be heading, a witness – a former member of the Djiboutian Presidential Guard who had found asylum in Belgium – came forward in December 1999 and lent support to the theory of premeditated murder, implicating the former chief of staff of the President of Djibouti, the then incumbent President Ismaël Omar Guelleh. His testimony proved highly controversial and was widely reported in the press and other media. In January 2000 the investigating judge, Ms Moracchini, interviewed this witness in Brussels, after which he challenged her impartiality, alleging that she had put pressure on him to withdraw his testimony. Lastly, in early March 2000, the investigating judges, accompanied by the director of the Paris Institute of Forensic Medicine and the Deputy Public Prosecutor of Paris, paid another visit to Djibouti in order to stage a reconstruction at the scene, without the civil parties being present. They had requested to attend but had been refused visas. In the context of the judicial investigation in respect of the premeditated murder charge, three judges’ unions, including the Union of Prosecutors and Judges (Union syndicale des magistrats – “the USM”), had applied on 2 February 2000 to be joined to the case as civil parties. For that purpose, the Chairman of the USM, Mr Valéry Turcey, sent a letter to Ms Moracchini and attached the USM’s decision taken by a vote of 28 January 2000 to apply for civil-party status in the proceedings. The decision was signed by Mr Riolacci, in his capacity as a member of the USM’s national council.
12.  It was in these circumstances that, on 13 March 2000, a press conference was held in Paris for the purpose of publicising a request sent to the Minister of Justice by Mrs Borrel’s lawyers for an investigation to be carried out by the General Inspectorate of Judicial Services concerning the above-mentioned investigating judges. During the press conference Mrs Borrel, her lawyers Mr Morice and Mr de Caunes, and a number of judges acting in the context of their union duties made public certain questions and criticisms about the way the judicial investigation was being handled.
13.  On 14 March 2000 the national daily newspaper Libération published an article entitled “Death of a judge: widow attacks judges and police”. This article, signed by Ms Brigitte Vidal-Durand, reported on the press conference held the day before.
14.  The article in issue read as follows:
“‘With one death, two orphans and a widow, what more do they want? Who are they protecting? I don’t understand. I no longer understand anything.’ Five and a half years after the discovery of his charred body on 19 October 1995 in Djibouti, Elisabeth Borrel still has no idea ‘why or how’ her husband, Judge Bernard Borrel, died. Challenging the official and increasingly unsound version that he committed suicide, she has made public a request for the case to be investigated by the General Inspectorate of Judicial Services at a time when the investigating judges, Roger Le Loire and Marie-Paule Moracchini, have actually just come back from Djibouti.
Bias. Sent yesterday to the Minister of Justice by her lawyers Olivier Morice and Laurent de Caunes, the request concerns the conditions in which the judicial investigation is being carried out. She complains that the judges showed bias in the examination of a witness, a former member of the Presidential Guard, who had come forward to lend support to the murder theory.
At her press conference in Paris yesterday, Elisabeth Borrel was flanked by Dominique Matagrin, Chair of the Professional Association of Judges and Prosecutors [Association professionnelle des magistrats] (APM, right-wing), and Anne Crenier, Chair of the Union of the National Legal Service [Syndicat de la magistrature] (SM, left-wing), which are civil parties in the case together with the Union of Prosecutors and Judges [Union syndicale des magistrats] (USM, moderate).
Accumulation. The conduct of the judicial investigation in the Borrel case had been ‘farcical’ [rocambolesque], Dominique Matagrin alleged, while Anne Crenier denounced ‘the accumulation of anomalies’. Herself a judge, Elisabeth Borrel commented yesterday that her ‘husband’s character [had] been investigated, in the search for evidence of paedophilia and corruption’, adding ‘they’ve tried to dig up a mistress, they’ve gone through his accounts – and I’m talking about the action of the police’.
As regards the judges’ action, her comments were equally as harsh, because they have been slow: it was four months before an autopsy was performed, more than a year before they obtained the report, eighteen months before the first visit of a judge to Djibouti, two years before testimony was taken from a witness (except from herself and a chaplain), two years before a second forensic report was ordered. At the start of the judicial investigation the local judges ‘questioned our cleaning ladies and the children in the street. But not my husband’s minister’ (Judge Borrel had been seconded to the Minister of Justice of Djibouti). The reconstruction? Elisabeth Borrel says she ‘doesn’t understand’ it: ‘my husband is supposed to have climbed down a five-metre cliff, on foot, covered in petrol’. ‘Holding a lighter in his hand, because he was in his underwear,’ adds Oliver Morice.
Flood. Then there are some obvious gaps. Her husband’s medical records seem to have ‘disappeared’ in a ‘highly selective flood’, because the same hospital still has the records for one of the couple’s children. Gone too are the military checkpoint and register of persons entering the secure area, 80 km north of Djibouti, where Bernard Borrel’s body was found.
In their request for an inspection, the lawyers accuse the two judges of ‘discussing more with the media than with the civil party’. They claim that they read on 3 March in [the newspaper] France Soir that the two judges were leaving for Djibouti. On Sunday night they saw, on the programme Capital on [the French television channel] M6, Roger Le Loire taking part in a reconstruction in another case in Djibouti [concerning the murder of a French serviceman], with journalists present.
When contacted yesterday, neither the Ministry, nor Roger Le Loire, who in the meantime had returned to Paris, wished to comment. But the Djiboutian embassy in Paris was quick to put things straight. It explained yesterday in a press release that the two judges’ assignment ‘will mainly have the result of dispelling any doubt’ after ‘unfounded accusations’.”
15.  On 14 March 2000 the investigating judges concerned brought proceedings against Mr July, in his capacity as publication director, and the newspaper Libération, for being civilly liable, directly summoning them to appear before the Nanterre Criminal Court for committing the criminal offence of public defamation against public officials, as provided for by sections 23, 29(1) and 31(1) of the Act of 29 July 1881 and punishable under section 30 of that Act. This was on account of the publication of the newspaper article of which the following four passages were considered defamatory:
“1.  Bias. She (Mrs Borrel) complains that the judges showed bias.
16.  In June 2000 the case was withdrawn from the two investigating judges and transferred to another investigating judge.
17.  In a judgment of 4 July 2000, the Criminal Court dismissed the request to include in the proceedings the whole of the file from the judicial investigation that had been criticised. The case was set down for hearing successively on 26 September 2000, 12 December 2000 and 14 February 2001. At that last hearing, the accused, Mr July, who had initially called a number of witnesses in the context of his offer to adduce evidence, finally refrained from relying on the veracity of the defamatory comments and used the defence of good faith.
18.  In a judgment of 13 March 2001, the Criminal Court acquitted the two defendants. The court began by setting out as follows the judicial context in which the article had been published:
“Bernard Borrel, a judge, died in Djibouti where he had been posted for a few months, on 18 or 19 October 1995.
The circumstances of the death of Mr Borrel, whose charred body was found at the bottom of a cliff, with a lighter in his hand, have not been elucidated to date. ...
In the judicial investigation which has since been opened on a charge of premeditated murder, against a person or persons unknown, it appears that Mrs Borrel has for several years refused to accept the theory of suicide and supports the hypothesis of a political crime potentially implicating senior officials in Djibouti.
At the time of the publication of the offending article, the case had already received a certain amount of media coverage because of the broadcasting on [the French television channel] TF1 of an interview with a witness lending support for the criminal hypothesis.
It was in February 2000 that the investigating judges learnt from an Agence France Presse newswire of an application from Mrs Borrel’s lawyers to have the case withdrawn from them.
A few days before the press conference was held, the two investigating judges, together with an expert, went to Djibouti to carry out acts within their remit in the absence of the civil party and her lawyers, who had not been invited to attend.
It was following this investigative measure, of which the civil party and her lawyers were very disapproving, that a press conference – without [the investigating judges] being notified – was held on 13 March 2000 and gave rise the next day to an article in the daily newspaper Libération. ...”
19.  The court then considered that three of the offending passages were not defamatory. As regards the judicial investigation being “rocambolesque” (farcical), the court observed that this adjective was derived from “Rocambole”, the name of a character featuring in serialised novels by Ponson du Terrail, and that it was used to describe a farcical situation, full of extraordinary ins and outs, as one might find in those novels. After noting that Mr Matagrin had, in a number of letters, contrary to the various statements given during the proceedings, denied using that term, but had not questioned the good faith of the journalist who wrote the article, the court found that the offending word was unquestionably polemical in nature but did not constitute in itself an attack on the honour and reputation of judges and that, whilst the expression undermined the image of a dispassionate judicial system, it was an example of polemical language falling within the free democratic debate surrounding judicial life that the judiciary could not oppose, unless one were to prohibit any criticism about the course of a judicial investigation. The reference to an “accumulation of anomalies” was found not to be related to the person in charge of the judicial investigation but to the anomalies identified in the case file and strongly conveyed the dissatisfaction of the civil parties. As to the “slowness attributable to the investigating judges”, the court considered that this criticism fell squarely within the public debate on the functioning of the judicial system and on its sluggishness, adding as follows:
“... judges have to accept free public scrutiny, and more specifically that of parties to proceedings and of the press, vis-à-vis their action, provided that criticism – harsh though it may be – does not contain any precise accusation impugning their intellectual honesty, professional integrity or devotion to public service. In the present case there can be no serious charge – to the extent of falling within the scope of criminal law – on account of the reproduction of a complaint against judges for being slow that was made at a press conference held four and a half years after the discovery of Mr Borrel’s body, and during which the judge’s widow lamented that she still had no idea how or why her husband had died.”
Accordingly, the only passage regarded as manifestly damaging to the judges’ honour and reputation was the one that concerned the civil party’s complaint that “the judges had shown bias”.
20.  However, the court accepted the applicants’ defence of good faith, having regard to the four conditions to be satisfied (pursuit of legitimate aim, absence of personal animosity, use of prudent and dispassionate language, requisite quality and seriousness of investigation), considering that the newspaper, by reporting on the criticism of the judicial investigation into the death of Judge Borrel, had simply been fulfilling its mission to inform the public. The court unequivocally recognised the legitimacy of the aim pursued (interest for public opinion, publicising of request for inspection by judicial inspectorate) and the absence of personal animosity. As regards the use of prudent and dispassionate language, the court, in view of the blatant antagonism between the civil parties and the investigating judges, remarked upon the vehemence of the comments, but considered that the journalist had taken the necessary distance by using the conditional tense in the only passage recognised as defamatory. Finally, as regards the last requirement, the court found that, by refraining from approving the offending expressions reported and by taking the requisite distance, the newspaper had avoided creating any confusion in readers’ minds between the speaker’s original comments and the analysis by that newspaper.
21.  In submissions filed with the Eighth Criminal Division of the Versailles Court of Appeal, on an appeal by the applicants, the civil parties relied on the four allegations already examined and sought recognition that they were defamatory. They further complained that the court had failed to impugn the lack of prudent and dispassionate language, in so far as journalists were supposed to convey objective and documented information and as they had a duty of preliminary investigation in order to ensure the reliability and accuracy of their information. The public prosecutor, for his part, left the matter to the discretion of the Court of Appeal.
22.  At the hearing set down for 10 July 2001, the Versailles Court of Appeal adjourned the case until a hearing of 26 September 2001. In a judgment of 14 November 2001, the Eighth Criminal Division of the Versailles Court of Appeal, presided over by Judge Riolacci (with Judges Renauldon and Quancy-Jacquemet also on the bench), partly set aside the judgment of acquittal, finding defamatory, in addition to the allegation of bias on the part of the judges, the accusation that the “conduct of the Borrel investigation had been ‘farcical’ (rocambolesque)”, and ruling as follows:
“It appears from the examination of witnesses before the court and from the attestation provided by Dominique Matagrin, Chair of the Professional Association of Judges and Prosecutors [Association professionnelle des magistrats], that he had used this word in a quite different formulation, which had not reflected an unequivocal desire to denounce his colleagues’ manner of investigation.
That being said, the adjective ‘farcical’ [rocambolesque], when applied to the manner in which a judicial investigation was conducted, went beyond the context of a simple debate since its aim was to denounce a practice that was unconventional and bizarre, of course alluding to the adventures of an unscrupulous and scheming character who lived by his wits, but above all implying that the judicial investigation had been flying in the face of common sense, without any rationality.”
23.  As to the allegations concerning an “accumulation of anomalies” and “slow judges”, the court endorsed the grounds adopted by the court below and upheld the judgment in that respect.
24.  The Versailles Court of Appeal also set aside the judgment appealed against in so far as it had admitted the first applicant’s defence of good faith, finding as follows:
“As to the defence of good faith
... The parties agree that the newspaper Libération was pursuing a legitimate aim in informing its readers about a press conference on a subject that had taken on a national dimension on account of its developments; furthermore, [the investigating judges] have never claimed that the article’s author showed any personal animosity towards them.
In addition, it should be observed, first of all, that Article 10 § 2 of the European Convention on Human Rights provides, with regard to the freedom to hold opinions and the freedom to impart information, that the exercise of those freedoms may be subject to certain formalities, conditions, restrictions or penalties.
In the present case, the relative ‘inexperience’ alleged by the journalist, claiming that reporting on court cases was not her strong point, cannot seriously be argued since she had already dealt with this subject.
The author clearly preferred not to report on the subject in the form of an interview and opted for a compromise solution involving the use of inverted commas, which considerably facilitated her task.
She had a duty to assess the full impact of the most suggestive terms used, such as ‘bias’ and ‘farcical’, and of their visual prominence in the article.
She was not unaware of the fact that the criminal case about which the press conference was held had entered into a phase of acute conflict, involving a particularly serious attack on the investigating judges; in choosing a certain manner of informing her readers, albeit indirectly, about the status of an ongoing judicial investigation of a particularly sensitive nature, the journalist had a duty to take certain precautions and to carry out a particularly serious investigation, since she could not have been unaware of the aim pursued by the civil parties.
In particular, by distorting Dominique Matagrin’s comments, to give them a completely different emphasis, the author of the article acted irresponsibly.
Moreover, she cannot seriously claim not to have managed to get in contact with the two judges concerned: Joëlle Lecoz, an investigating judge’s assistant, has stated that she cannot remember any call from the journalist. In any event, the journalist, who had some knowledge about judicial issues, was under an obligation, in view of the deadline for the paper to go to press, to gather various items of information beforehand, even before the press conference, and also to indicate in her article that, in the following days, she would ensure that the persons thus criticised had the opportunity to reply.
By choosing, as to the form, to report it by adopting a style other than that of an interview, the author could not have been unaware that the parts of the article not placed between inverted commas could be attributed to her.
Contrary to the reasoning given on this point by the courts below, the impugned article does not strike a balance between the respective positions. To be sure, by failing to ask either the public prosecutor’s office or the main parties concerned about the factors that might have affected the progress of the investigation, the journalist logically did not put herself in a position to strike such a balance, in particular as in the presentation of the article’s paragraphs a significant amount of space was left for the positions of other judges representing their unions.
This flagrant breach of the duty to ensure accuracy, seriousness and prudence, with mistakes in the dates, cannot be justified by the alleged urgency. The publication director, being well-informed about issues of society, had an obligation to scrutinise the article more stringently, especially as he was aware of the author’s relative lack of experience. ...”
25.  The Court of Appeal found the first applicant guilty and held that the second applicant was civilly liable. It gave the first applicant an indictable-offence sentence in the form of a fine of 10,000 French francs (FRF) (about 1,500 euros (EUR)), also awarding FRF 10,000 in damages to each of the civil parties, and ordered the publication in the newspaper and another national daily of the operative provisions of the judgment, for a cost not exceeding FRF 15,000 (about EUR 2,286). It further ordered the applicants, jointly and severally, to pay the civil parties FRF 20,000 (about EUR 3,000) for costs not covered by the State.
26.  The applicants appealed on points of law, relying in particular on Article 10 of the Convention.
27.  In a judgment of 14 January 2003, the Court of Cassation dismissed the appeal on points of law against the judgment of 14 November 2001, ruling as follows:
“In refusing to accept the defendant’s defence of good faith, after rightly finding defamatory the criticism of the investigating judges for conducting their investigation in a biased and farcical manner, the second-instance court gave its ruling on the grounds now set out by the appellant.
Having regard to those grounds, as they stand, the Court of Appeal justified its decision under sections 29 and 31(1) of the Act of 29 July 1881 and under Article 10 § 2 of the European Convention on Human Rights.
Only attacks of a theoretical and general nature may benefit from the freedom attached to criticism of the operation of the basic institutions of the State.
Whilst it is legitimate to inform the public about the operation of the courts, the aim thus pursued does not exempt journalists from the duties of prudence, caution and objectivity in the expression of thought; the right of free criticism cannot extend to personal attacks. ...”
28.  In parallel to those proceedings, Mr Morice, the lawyer acting for Mrs Borrel, was prosecuted for aiding and abetting public defamation against the investigating judge responsible for the “Borrel case” at the material time, following the publication by the national daily newspaper Le Monde, which was prosecuted as the principal offender, of an article dated 7 September 2000 entitled “Borrel: Judge Moracchini’s impartiality called into question”.
29.  In a judgment of the Nanterre Criminal Court dated 4 June 2002, he was found guilty, given an indictable-offence sentence in the form of a fine and ordered to pay damages. In the appeal proceedings, before the Versailles Court of Appeal, Mr Morice found out that the judge presiding over the Eighth Criminal Division of that court was Judge Riolacci. Acting as counsel for Mrs Borrel, and thus having access to the investigation file, he found, on reading the attendance list for the meeting of the USM’s national council on 28 January 2000 when its members had decided to apply to join the Borrel proceedings as a civil party, that Judge Riolacci had signed it in his capacity as a member of the national council. On 27 February 2003 Mr Morice filed an application with the President of the Versailles Court of Appeal seeking the judge’s replacement, arguing that the case could not be heard by a judge who had personal knowledge of the Borrel file and who had participated in his union’s decision to join the proceedings as a civil party.
30.  That application was not examined on the merits. In an order of 19 March 2003, the Court of Appeal found that the claim had become devoid of object as Judge Riolacci had withdrawn for “personal reasons” which prevented him from sitting in the appeal hearing set down for 27 March 2003. These facts were the subject of the application in Morice v. France (no. 36427/03), which on 17 January 2006 was declared inadmissible for lack of victim status by a committee of three judges set up in accordance with Article 27 of the Convention.
31.  On 16 October 2005 Libération published an article entitled “Appeal for the truth about the murder of Judge Borrel”:
“A French judge was murdered on 19 October 1995 in Djibouti. For fear of losing a French military base and the capacity to intervene in a geopolitically sensitive area, everything has been done to make this crime look like suicide. For some ten years now, there has been no end to the pressure and manipulation designed to cover up the truth. Only the courage and determination of Elisabeth Borrel, and the support she has received, have prevented this case from being swept under the carpet once and for all.
On 19 October 1995, 80 km from Djibouti, the partly burnt body of the French judge Bernard Borrel, adviser to Djibouti’s Minister of Justice, was discovered at the foot of a cliff. This death soon became one of those ‘exquisite corpses’ about which the official truth must hastily be announced, that of suicide. Unfortunately for the instigators of this theory, the various shortcomings in the initial investigation (no autopsy, missing X-rays, etc.) and judicial investigation up to June 2000, as revealed by the judge’s widow, Elisabeth Borrel, and her lawyers, with the support of the Union of the National Legal Service [Syndicat de la magistrature], have been publicly denounced. The withdrawal of the case from the two investigating judges in June 2000 was to mark a turning point in the judicial investigation.
The hypothesis that Bernard Borrel was murdered has now been confirmed by the developments in the investigation and by forensic medical and technical examinations following a fact-finding visit to the scene in February 2002. The discovery of a head injury caused by a dangerous instrument and an injury sustained in self-defence, namely a fractured arm, together with the detection of a second inflammable liquid from a container other than the jerrycan found at the scene, clarify once and for all that it was murder.
Reasons of State versus Justice
Progress in the judicial investigation has also been delayed and hindered by the government’s direct acts of blockage and pressure when requests have been made for the declassification of documents held by the DGSE [the French external intelligence agency] and the DST [the French domestic intelligence agency]. Those attempts at obstruction, combined with a barrage of legal actions against Elisabeth Borrel’s lawyers, the Union of the National Legal Service and material witnesses who have dared to implicate the President of Djibouti’s entourage, suggest that further intimidation can be feared. A judicial investigation was opened in Versailles in early 2003 for the offence of procuring a person to give false evidence, after detailed statements by Djiboutian witnesses implicating high-ranking officials in the country, especially the current Public Prosecutor of Djibouti and the Head of Secret Services.
The announcement on 29 January by the Ministry of Foreign Affairs that the French case file was to be handed over to the Djiboutian authorities, in breach of the principle of the separation of powers, did not meet with any protest from the Minister of Justice, Dominique Perben, whereas the investigating judge had previously denied the request of his Djiboutian counterpart, taking the view that it would be an abuse of procedure in view of the possible involvement of Djiboutian officials. The new Minister of Justice has now undertaken not to hand over the case file against the will of the investigating judge. It is a shame that such mobilisation was necessary simply to get the Minister of Justice ... to observe the law.
This cynicism was taken a step further with the reception of the Djiboutian Head of State by Jacques Chirac on 17 May 2005. Whilst Ismaël Omar Guelleh had been summoned to appear as a witness by the judge investigating Judge Borrel’s murder, the Ministry of Foreign Affairs let it be known that he did not need to respond to the summons because of his immunity as Head of State. For his part, Jacques Chirac openly renewed his support for President Guelleh and called the courts to order, drawing attention in particular to the excessive length of the proceedings.
Borrel investigation: mission impossible?
Another cause for concern is the increase in criminal proceedings against journalists and the press for being ‘guilty’ of countering the official position that prevailed until June 2000 – that of suicide. In addition to the barrage of actions against Libération, Le Monde, Golias, Canal Plus and the Canard enchaîné, in 2005 there were two acts of censorship, this time by the administration of an emblematic radio station – with its international audience – RFI [Radio France Internationale].
Information on Franco-African affairs is not part of a ‘reserved domain’ of communication emanating from the Ministry of Foreign Affairs or the President. The French government must now refrain from any attempt to restrict the freedom of journalists to report on developments in the Borrel case.
Everything must now be done to allow the investigating judge to pursue his enquiries without having to fear government pressure. The French State itself must remove the various obstacles in the proceedings, in particular by handing over to the investigating judge all documents in the authorities’ possession that may have a bearing on this murder case.”
32.  On 28 June 2006 Mrs Borrel’s lawyer announced that genetic fingerprints had been found on the judge’s shorts and that they might belong to the murderers. On 19 October 2006 the investigating judge in the case delivered two arrest warrants against two Djiboutian nationals suspected of being the perpetrators, in order to compare their DNA with the genetic fingerprints found on the judge’s clothing.
33.  On 14 February 2007 the investigating judge summoned the President of Djibouti, Omar Guelleh, to appear as a witness, just before he was due to arrive in France for the Africa-France summit held in Cannes on 16 and 17 February 2007.